✓ Verified September 2026
Maryland Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.
This guide gives the Maryland answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Maryland law, verified as of September 2026.
In This Maryland Guide:
Maryland Surviving Spouse Rights: At a Glance
Here are the Maryland facts that decide most Maryland surviving spouse rights claims:
| Elective share | Under Md. Code, Est. & Trusts § 3-403, a surviving spouse may elect against the will and take one-third of the “estate subject to election” if the decedent left surviving issue, or one-half if there is no surviving issue. The share is then reduced by the value of all spousal benefits the survivor already receives from the decedent (§ 3-409). Since the October 1, 2020 rewrite of Subtitle 4, the base is the augmented estate, not just the probate estate. Registered domestic partners are expressly not given this right (§ 3-403). |
| Deadline to elect | The election must be filed within the later of nine months after the date of death, or six months after the first appointment of a personal representative under a will (Est. & Trusts § 3-407). Within that period the spouse may petition the court for an extension, which the court may grant for good cause in increments of up to three months at a time. An election may be withdrawn any time before the election period expires. Missing the deadline generally forfeits the elective share, so check with the Register of Wills or a licensed Maryland attorney early. |
| Counts non-probate assets (augmented estate) | YES. Est. & Trusts § 3-404 defines the augmented estate as the decedent’s probate estate plus all revocable trusts of the decedent, all property over which the decedent held a qualifying power of disposition at death, all qualifying joint interests, and all qualifying lifetime transfers. Bona fide sales for adequate consideration are excluded, and certain older or family-directed life insurance proceeds are carved out. Deductions and spousal benefits are then subtracted to reach the “estate subject to election.” |
| Community property state | NO. Maryland is a common-law (separate property) state, so there is no automatic one-half community interest for the surviving spouse. Protection against disinheritance comes instead from the elective share in Est. & Trusts §§ 3-403 through 3-409, together with the family allowance under § 3-201. |
| Homestead allowance | NONE. Maryland’s probate code has no homestead allowance and no statutory life estate in the marital home for a surviving spouse; Title 3, Subtitle 2 of the Estates and Trusts Article provides only the family allowance, and § 3-202 abolished dower and curtesy. A home held as tenants by the entirety or with a survivorship deed passes to the survivor outside probate by operation of law rather than by any homestead right. |
| Exempt property | NONE. Maryland has no probate exempt property allowance for household goods, furnishings, or a vehicle; there is no Maryland counterpart to the Uniform Probate Code’s exempt property section. The only cash entitlement of this kind is the family allowance under Est. & Trusts § 3-201. Personal property otherwise passes under the will or by intestacy. |
| Family allowance | A surviving spouse (or surviving registered domestic partner) is entitled to an allowance of 10000 for personal use, plus 5000 for the use of each unmarried child of the decedent under 18 at the date of death, paid by the personal representative under Est. & Trusts § 3-201 and § 13-501. It is a one-time statutory amount, not a periodic or duration-based payment, and it is in addition to anything passing under the will or by intestacy. |
| Court / filing | The Orphans’ Court for the Maryland county (or Baltimore City) where the estate is administered; the election is filed with that county’s Register of Wills, who serves as clerk to the Orphans’ Court. In Montgomery and Harford Counties the Circuit Court sits as the Orphans’ Court. — Election to Take Elective Share of Estate Subject to Election — Register of Wills form RW1126, filed with the Register of Wills under Est. & Trusts § 3-408. Older filings and forms may use the earlier name “Election to Take Statutory Share of Estate.” The election must be in writing and signed by the surviving spouse. |
Why the Will Cannot Disinherit a Spouse in Maryland
The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.
In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Maryland uses one of those two systems, and the table above says which.
The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Maryland surviving spouse rights fact that a grieving spouse most often learns too late.
The Maryland Elective Share
Under Md. Code, Est. & Trusts § 3-403, a surviving spouse may elect against the will and take one-third of the “estate subject to election” if the decedent left surviving issue, or one-half if there is no surviving issue. The share is then reduced by the value of all spousal benefits the survivor already receives from the decedent (§ 3-409).
Since the October 1, 2020 rewrite of Subtitle 4, the base is the augmented estate, not just the probate estate. Registered domestic partners are expressly not given this right (§ 3-403).
The deadline: The election must be filed within the later of nine months after the date of death, or six months after the first appointment of a personal representative under a will (Est. & Trusts § 3-407). Within that period the spouse may petition the court for an extension, which the court may grant for good cause in increments of up to three months at a time.
An election may be withdrawn any time before the election period expires. Missing the deadline generally forfeits the elective share, so check with the Register of Wills or a licensed Maryland attorney early.
What counts: YES. Est. & Trusts § 3-404 defines the augmented estate as the decedent’s probate estate plus all revocable trusts of the decedent, all property over which the decedent held a qualifying power of disposition at death, all qualifying joint interests, and all qualifying lifetime transfers. Bona fide sales for adequate consideration are excluded, and certain older or family-directed life insurance proceeds are carved out.
Deductions and spousal benefits are then subtracted to reach the “estate subject to election.”
Community property: NO. Maryland is a common-law (separate property) state, so there is no automatic one-half community interest for the surviving spouse. Protection against disinheritance comes instead from the elective share in Est. & Trusts §§ 3-403 through 3-409, together with the family allowance under § 3-201.
Allowances the Spouse Gets on Top of the Will
Homestead: NONE. Maryland’s probate code has no homestead allowance and no statutory life estate in the marital home for a surviving spouse; Title 3, Subtitle 2 of the Estates and Trusts Article provides only the family allowance, and § 3-202 abolished dower and curtesy.
A home held as tenants by the entirety or with a survivorship deed passes to the survivor outside probate by operation of law rather than by any homestead right.
Exempt property: NONE. Maryland has no probate exempt property allowance for household goods, furnishings, or a vehicle; there is no Maryland counterpart to the Uniform Probate Code’s exempt property section. The only cash entitlement of this kind is the family allowance under Est. & Trusts § 3-201. Personal property otherwise passes under the will or by intestacy.
Family allowance: A surviving spouse (or surviving registered domestic partner) is entitled to an allowance of 10000 for personal use, plus 5000 for the use of each unmarried child of the decedent under 18 at the date of death, paid by the personal representative under Est. & Trusts § 3-201 and § 13-501.
It is a one-time statutory amount, not a periodic or duration-based payment, and it is in addition to anything passing under the will or by intestacy.
Married After the Will Was Signed
Maryland has no pretermitted or omitted spouse statute that awards an automatic share. A will executed before the marriage stays valid; under Est. & Trusts § 4-105(3) it is revoked only if the marriage is followed by the birth, adoption, or legitimation of a child of the testator who (or whose descendant) survives the testator.
A spouse married after the will was signed and left out of it must therefore use the elective share under § 3-403 to claim against the estate.
📨 Get Free Estate Planning Guides Alerts
Free · No spam · Unsubscribe anytime
Waiver and Disqualification in Maryland
The right of election may be waived before or after marriage by a written contract, agreement, or waiver signed by the party waiving it (Est. & Trusts § 3-406). Unless the document says otherwise, a waiver of “all rights” in the other’s property, or a complete property settlement made after or in anticipation of separation or divorce, waives both the elective share and the family allowance.
Maryland case law also requires the agreement be entered voluntarily with fair disclosure of finances; independent counsel is not a statutory requirement.
What forfeits the rights: A person is not a “surviving spouse” — and so takes nothing under Title 3 — if the person obtained or received an absolute divorce from the decedent, if the marriage was validly annulled, if the person was convicted of bigamy while married to the decedent,
or if the person went through a marriage ceremony with a third person after a divorce or annulment decree obtained by the decedent (Est. & Trusts § 3-102 and Subtitle 4 definitions).
A pending divorce that is not final, mere separation, or abandonment alone does not by itself forfeit these rights; a signed property settlement can, under § 3-406.
If there is no will: With no will, Est. & Trusts § 3-102 gives the surviving spouse the entire estate when there is no surviving issue and no surviving parent, and otherwise a reduced share — for example the first 100000 plus one-half of the residue in specified situations, or one-half where a minor child survives. The Maryland dying-without-a-will guide linked below covers that in full.
Other Maryland rules: Maryland’s share is not a sliding scale by length of marriage — it is a flat one-third or one-half depending only on whether the decedent left surviving issue (§ 3-403). Dower and curtesy were abolished by § 3-202.
The October 1, 2020 augmented-estate law applies to decedents dying on or after that date and reaches revocable trusts, joint accounts, and lifetime transfers that the pre-2020 law did not. Registered domestic partners receive the family allowance but have no elective share right.
Mistakes That Cost a Surviving Spouse in Maryland
The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.
A spouse who was left “the house” may be entitled to considerably more under the Maryland surviving spouse rights rules — and may also be entitled to allowances the will never mentions.
The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.
If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.
What to Expect When You Claim Maryland Surviving Spouse Rights
Claiming Maryland surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.
Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.
Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.
You don’t have to do this alone
If you are settling a loved one’s estate in Maryland, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.
Key Takeaways: Maryland Surviving Spouse Rights
- The will cannot disinherit you: Maryland surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
- You must elect: Maryland surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
- The deadline is short: the election that secures Maryland surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
- Allowances come first: the homestead, exempt-property, and family allowances under Maryland surviving spouse rights are paid before creditors and heirs.
- Trusts may count: in augmented-estate states, Maryland surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
- Community property is different: where it applies, half is already the survivor’s, and Maryland surviving spouse rights are about the other half.
- A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Maryland surviving spouse rights.
- Prenups can waive: Maryland surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
- Separation can forfeit: a pending divorce or abandonment can end Maryland surviving spouse rights in some states before the death.
- Sign nothing early: a release or disclaimer offered by another heir can waive Maryland surviving spouse rights the spouse never knew about.
- Compare before you elect: Maryland surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
- The intestate share is separate: when there is no will, Maryland surviving spouse rights are set by the intestacy rules on the companion guide.
Quick Answers: Maryland Surviving Spouse Rights
What are Maryland Surviving Spouse Rights if the will leaves the spouse nothing?
A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Maryland Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.
You May Also Like
Official Maryland Sources & Resources
- Maryland Probate Court: https://registers.maryland.gov/main/
- Maryland Elective Share Statute: https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=get§ion=3-403
- Internal Revenue Service — Estate Tax: irs.gov
- Cornell Legal Information Institute: law.cornell.edu/wex
This Maryland guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.
More Maryland Estate Guides
- Contest a Will in Maryland
- Maryland Medicaid Estate Recovery
- Dying Without a Will in Maryland
- Maryland Probate Process
- When a Spouse Died With Debt
- All State Guides
Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.